LRC Returns to Court for ECD Subsidy Litigation

The Legal Resources Centre, acting on behalf of the Friends of South Africa ECD Forum and the KZN ECD Alliance, will return to the Pietermaritzburg High Court on 23 June 2026 for the second stage of litigation concerning the non-payment of early childhood development subsidies across KwaZulu-Natal.

The case seeks to address systemic failures in the administration and payment of subsidies owed to qualifying ECD programmes. The applicants are also asking the Court to recognise, for the first time in South African law, that access to ECD is constitutionally protected and that the state has clear obligations to respect, protect, promote and fulfil the rights of young children during their earliest years of development.

This litigation is about more than unpaid money. It concerns the grim reality for children whose access to early learning, nutrition, care and developmental support depends on community-based ECD programmes that cannot survive without reliable public funding. For many families living in poverty, these programmes are among the few places where children receive a safe environment, nutritious meals, structured play, social support, and the care of trained practitioners.

The cost of unpaid subsidies

Across KwaZulu-Natal, hundreds of ECD centres have experienced financial strain and collapse as a result of late, irregular and unexplained subsidy payments. The subsidy, although recently increased from R17 to R18.95 per child per day, remains modest and insufficient to cover the full cost of running an ECD programme. However, for centres serving poor and marginalised communities, even this modest amount is the lifeline for sustaining operations, and without it, centres are forced to reduce services or close altogether.

When subsidy payments are delayed or not paid, the consequences are immediate. Practitioners go unpaid and leave the sector. Centres are forced to cut down on meals, delay maintenance, reduce learning materials and struggle to keep safe and nurturing spaces open. These are not administrative inconveniences. They affect young children at a stage of life where nutrition, stimulation and care have lifelong consequences.

The crisis is especially acute in KwaZulu-Natal, where poverty, hunger, and inequality shape the lives of many young children. In 2022, 81 percent of young children in the province lived in households below the upper bound poverty line, even when the Child Support Grant was taken into account. The province also carries high levels of food poverty and child stunting. In this context, access to ECD services is not optional. It is central to a child’s survival, development, and equal opportunity.

How the litigation reached this stage

The matter follows a long period of engagement with the KwaZulu-Natal Department of Education (KZNDoE). After responsibility for ECD shifted from the Department of Social Development to the Department of Basic Education in April 2022, many centres reported months-long payment gaps and a lack of clear reasons for the delays.

The LRC first wrote to the KZNDoE in February 2024, demanding payment of arrears and reasons for the delays. That letter went unanswered. Although some payments were made in March 2024, the underlying problem soon returned, leaving many centres at risk of closure. Subsequent letters sent in October 2024 and April 2025 also went unanswered.

With no adequate response from the KZNDoE, the Friends of South Africa ECD Forum, the KZN ECD Alliance and three affected centres, Sakhokwethu, Phumelela and Zenzeleni, launched legal proceedings with the support of the LRC.

The urgent first part of the case was heard in the Pietermaritzburg High Court on 26 May 2025. The Court ordered the Department to pay all arrears owed to the three centres within ten days. Despite the clear order, the Department only made partial payments to two of the centres and no payment to the third. Further attempts by the LRC to secure compliance were largely ignored, apart from a vague response referring to internal accounting problems.

When payments were eventually made, they were inconsistent, incomplete and unexplained. Centres were not told which months or financial years the payments covered. Without this information, principals could not plan, budget, or meet their responsibilities to staff, children, and families. In practice, they were forced into impossible choices between paying practitioners, feeding children, buying supplies, and keeping facilities safe.

What the applicants are now asking the Court to do

The second stage of the litigation seeks structural relief that addresses the systemic nature of the problem. The applicants are asking the Court to declare that the Department’s irregular, inconsistent and delayed payment of ECD subsidies is unlawful and unconstitutional.

The applicants are also asking the Court to direct the Department to account for all outstanding subsidies owed to qualifying ECD programmes, to provide clear information on the amounts paid and still owing, and to implement a transparent plan that ensures future payments are made on time.

The applicants are also asking the Court to monitor implementation so that any order granted results in meaningful change for ECD centres and the children who depend on them. Court supervision is necessary because repeated requests for information and payment have not produced a reliable administrative system. In summary, the applicants seek:

1. A declaration that access to early childhood development is constitutionally protected.
2. A declaration that irregular, inconsistent and delayed subsidy payments are unlawful and unconstitutional.
3. An order directing the Department to account for all outstanding subsidies owed to qualifying ECD programmes.
4. An order requiring the Department to provide a practical, transparent and time bound plan for payment.
5. Court supervision to ensure that the plan is implemented and that centres receive clear information about payments.

The constitutional importance of ECD

This hearing presents an important opportunity to develop South African constitutional law in a way that recognizes the lived realities of young children. The applicants argue that ECD should not be a luxury or a private service available only to those who can afford it. It is part of the foundation required for children to grow, learn, participate and enjoy their rights.

The Constitution requires that a child’s best interests be of paramount importance in every matter concerning the child. It also protects children’s rights to basic nutrition, shelter, education, basic health care services and social services, and protects the rights to equality, dignity and life. For young children, these rights are deeply connected. A child cannot fully benefit from learning without nutrition, safety, care and support.

The applicants therefore ask the Court to confirm that the state’s constitutional obligations include a duty to support access to ECD, particularly for children in poor and marginalised communities. If granted, the relief has the potential to shape how courts, departments and public institutions understand the state’s responsibilities during the earliest years of childhood.

Amicus curiae submissions

In a significant development, the Court has admitted the Equality Collective, represented by the Centre for Child Law, to make submissions as amicus curiae. These submissions are expected to assist the Court in considering the content of the right to ECD and the form of relief needed to protect young children from the consequences of systemic administrative failure.

The admission of the amicus recognises the broader public importance of the matter. The outcome will not only affect the three centres directly involved in the first stage of the case, but also the rights of children and ECD programmes across KwaZulu-Natal and beyond.

Public demonstration in support of ECD

The significance of this matter is reflected in the unprecedented show of support expected outside the Pietermaritzburg High Court on the morning of the hearing. More than 1000 ECD practitioners are expected to gather in a peaceful demonstration, underscoring the profound impact that delayed and irregular subsidy payments have had on the sector and the importance of securing a sustainable solution that protects the rights and wellbeing of young children.

A case about accountability and children’s rights

The LRC emphasises that this litigation is not a request for special treatment. It is an effort to ensure that the state meets its existing obligations to young children and to the community-based programmes that provide essential services on its behalf.

Young children should not bear the cost of administrative failure. ECD practitioners should not be left to carry the burden of a broken payment system while trying to keep centres open for children who need them. Reliable subsidy payments are essential to protect children’s rights, sustain services in poor communities, and build a fairer foundation for learning and development.

The LRC, together with the Friends of South Africa ECD Forum and the KZN ECD Alliance, will ask the Court to grant relief that moves beyond temporary payment of arrears and towards a lawful, transparent and accountable system for ECD subsidy payments.